Franet National contribution to the Fundamental Rights Report 2020 - European Union Agency for Fundamental Rights
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Franet National contribution to the
Fundamental Rights Report 2020
Austria
Contractor’s name: European Training and Research Centre for Human Rights
and Democracy (ETC Graz)
Authors’ name: Markus Möstl, Klaus Starl
Disclaimer: This document was commissioned under contract by the European Union
Agency for Fundamental Rights (FRA) as background material for the project ‘FRA
Fundamental Rights Report 2020”. The information and views contained in the document
do not necessarily reflect the views or the official position of the FRA. The document is
made publicly available for transparency and information purposes only and does not
constitute legal advice or legal opinion.
Franet National contribution to the FRA Fundamental Rights Report 2020Contents
Franet country study: policy and legal highlights 2019..................................................................................... 3
Chapter 1. Equality and non-discrimination ..................................................................................................... 4
Chapter 2. Racism, xenophobia and related intolerance .................................................................................. 7
Chapter 3. Roma integration ............................................................................................................................ 9
Chapter 4. Asylum, visas, migration, borders and integration ....................................................................... 12
Chapter 5. Information society, data protection ............................................................................................ 16
Chapter 6. Rights of the child ......................................................................................................................... 21
Chapter 7. Access to justice including crime victims....................................................................................... 24
Chapter 8. Developments in the implementation of the Convention
on the Rights of Persons with Disabilities ...................................................................................................... 29
Annex 1 – Promising Practices ....................................................................................................................... 32
Annex 2 – Case law ........................................................................................................................................ 37
2
Franet National contribution to the FRA Fundamental Rights Report 2020Franet country study: policy and legal highlights 2019
Issues in the No important development in 2019.
fundamental
rights
institutional
landscape
EU Charter of Court decision referring to Article 47 of the EU Charter of Fundamental Rights: In
Fundamental June 2019, the Austrian Constitutional Court ruled that Article 47 (2) of the EU Charter
Rights has been infringed in a case concerning the non-recognition of subsidiary protection status,
the granting of a temporary entry ban and a return decision concerning a mentally ill
Afghan national. The facts were not sufficiently clarified because it remained unclear what
conclusions are to be drawn from the medical expert’s opinion. An oral hearing (in
particular a hearing of a medical expert) would have been necessary to determine whether
or not a return to Afghanistan would deteriorate the health status of the applicant.
Equality and Discrimination survey: In March 2019, the Institute for Social Research and Consulting
non- issued a representative survey, which it conducted for the Vienna Chamber of Labour.
discrimination The survey shows that 43% of the Austrian population feel that they have been treated
worse or discriminated against at least once between 2016 and 2018 in the areas of work,
housing, health and education. The power gap is relevant for discrimination across all
areas.
Racism, New ESF projects: New ESF Roma Empowerment projects have been presented on 17
xenophobia & September 2019 at the 23rd Roma Dialogue Platform of the National Roma Contact Point
Roma at the Federal Chancellery.
integration
Asylum & No important development in 2019.
migration
Data protection Competence for GDPR cases clarified: On 23 May 2019, the Austrian Supreme Court
and digital rejected Facebook's view that only the Irish Data Protection Commissioner was competent
society for cases concerning the GDPR. The Austrian Supreme Court made it clear now that
everyone has a right to file a lawsuit in Austria based on GDPR.
Rights of the New legislation on the way: A draft law amending the Criminal Procedure Code and the
child Youth Criminal Act 2019 is currently in Parliament. The purpose of this draft is to fully
implement the Directive on procedural safeguards for children who are suspects or
accused persons in criminal proceedings (EU) 2016/800 and to fully implement the Legal
Aid Directive (EU) 2016/1919.
Access to New Protection from Violence Act adopted: The Protection from Violence Act 2019
justice, (Gewaltschutzgesetz 2019) was adopted by Parliament in September 2019. It introduces
including amendments to manifold Austrian laws related to victim protection and violence against
victims of women. Victim support organisations welcome some aspects of the new law, but also
crime voice concerns.
Convention on Law transposing the Web Accessibility Directive: In July 2019, the Austrian
the Rights of Parliament adopted a law transposing the Web Accessibility Directive (EU) 2016/2102.
Persons with This federal law sets accessibility requirements for federal websites and mobile
Disability applications to make them more accessible to users, especially to those with disabilities.
3
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 1. Equality and non-discrimination
1. Legal and policy developments in 2019 relevant to combating discrimination based on
gender identity, religion or belief, disability, age or sexual orientation
Austria introduced the new § 17 (1a) in International Private Law Act in order to allow all same-sex
couples from all over the world to marry in Austria, and not just those whose country of origin allows
same-sex marriages.1 This amendment entered into force on 1 August 2019.
Following a landmark ruling by the Constitutional Court in 2018, Austria now issued the first
documents displaying a third gender. The successful plaintiff received a passport with the gender
marker "X" and a birth certificate stating "divers" (this translates to “various”). The Austrian LGBTI-
rights organisation "Rechtskomitee LAMBDA" expresses delight over the historic moment, but
identifies persistent challenges due to a decree (BMI-VA1300/0528-III/4/b/2018, 20.12.2018) issued
by the former Minister of Interior Herbert Kickl, which is still in force. Rechtskomitee LAMBDA
criticises that because of this decree, registry offices are only allowed to register the term "divers",
and the gender of new-borns may only be registered as "male" (männlich), "female" (weiblich), or
"open" (offen). Moreover, Rechtskomitee LAMBDA criticises that the third gender option may only be
granted after a positive assessment of a biological intersexuality by so-called “Variety-of-Gender-
Development-Boards”, which have not even been established yet. According to Rechtskomitee
LAMBDA, the decree violates the Constitutional Court´s judgment.2 The critique was repeated in
December 2019.3
After the ECJ ruled that the Austrian regulation concerning Good Friday (public holiday only for
members of certain religious communities) constitutes an unjustified discrimination based on religion
(ECJ 22. 1. 2019, C-193/17, Cresco Investigation, ARD 6634/7/2019, see Annex 2 of this report),
amendments have been made to the Austrian Act on Rest Periods and further related Acts.4 § 7 (3) of
the Austrian Act on Rest Periods (Arbeitsruhegesetz) has been repealed. The newly introduced §7a of
the Austrian Act on Rest Periods (Arbeitsruhegesetz) now stipulates that that each employee may
unilaterally declare in writing that one day of his existing vacation entitlement is a "personal holiday".
This has to be done three months in advance at the latest.
The provinces of Vorarlberg5 and Carinthia6 introduced amendments to their provincial anti-
discrimination acts requiring websites and mobile applications of the province and related bodies to
be made accessible to persons with disabilities in a barrier-free manner. Austria adopted a law
transposing the Web Accessibility Directive (EU) 2016/2102. More information on these amendments
is provided in Chapter 8.
1
Austria, International Private Law Act (Bundesgesetz vom 15. Juni 1978 über das internationale Privatrecht,
IPR-Gesetz).
2
Rechtskomitee LAMBDA, ‘Austria Issued First Third Gender Documents’, 15 January 2019.
3
Ius Amandi, ‘Drittes Geschlecht: Innenministerium probt den Aufstand gegen die Justiz’, Zeitschrift für
gleichgeschlechtliche Liebe und Recht, Issue 4/2019.
4
Austria, Amendments to the Austrian Act on Rest Periods and further Acts (Änderung des Arbeitsruhegesetzes,
des Bäckereiarbeiter/innengesetzes 1996, des Feiertagsruhegesetzes 1957, des Landarbeitsgesetzes 1984 und
des Land- und Forstarbeiter-Dienstrechtsgesetzes), 21 March 2019.
5
Austria, Amendment to the Anti-discrimination Act Vorarlberg (Gesetz über eine Änderung des
Antidiskriminierungsgesetzes), 14 January 2019.
6
Austria, Amendment to the Anti-discrimination Act Carinthia (Gesetz vom 28. März 2019, mit dem das
Kärntner Antidiskriminierungsgesetz geändert wird), 15 April 2019.
4
Franet National contribution to the FRA Fundamental Rights Report 2020Concerning access to education, a very controversially discussed amendment to the School-
Education-Act (Schulunterrichtsgesetz) was decided by the Parliament in May 2019.7 The amendment
prohibits the wearing of religious symbols covering the head for pupils under the age of ten years in
class. The political parties in government at the time underlined that this will be an important symbol
against political Islam, and promotes the equality between men and women. The opposition parties
marked it as an ineffective and symbolic policy only directed to the majority population.
2. Research findings, studies or surveys on either experiences of discrimination or rights
awareness
The Institute for Social Research and Consulting “SORA” conducted a representative telephone
survey for the Vienna Chamber of Labour regarding the experience of discrimination and unequal
treatment in Austria in the areas of work, housing, health, and education.8 2,317 people between the
ages of 14 and 65 were interviewed (random sampling) between February and July 2018. They were
asked about their discrimination experiences in terms of gender, marital status, age, ethnic origin,
religion, sexual orientation, impairment, and social status. Almost half of all respondents (43%) stated
that they felt that they had been treated worse than others or discriminated against at least once in one
of the four surveyed areas of life between 2016 and 2018. Extrapolated, this means than more than 2.5
million people in Austria made such experiences between 2016 and 2018. The study found that
individual characteristics have a large impact on who experiences discrimination in which area and
how often. Persons with an immigrant background or a Muslim religious affiliation experience twice
as many (62% and 78%, respectively) discriminations as persons without a migration background
(37%) or with a Christian religious affiliation (39%). Gay, lesbian, or bisexual respondents are more
than three times more likely to experience discrimination than heterosexual respondents. People who
regard themselves to be more at the bottom of society are twice as likely to be discriminated against
because of their social situation as people who regard themselves as middle class. The study found
that the power gap is relevant for discrimination across all areas. For example, supervisors in
companies, landlords and property managers, medical doctors and nursing staff, and teaching staff are
more likely to discriminate than work colleagues, classmates, or neighbors.9 Mostly, instances of
discrimination are ignored. Almost half of those affected go on the offensive and fight against
discrimination. 39% do not know what to do.10
The Initiative for a Discrimination-free Education System presented its third annual report covering
2018.11 A total of 260 cases of discrimination in education were documented in 2018, which is 87
more than in 2017 and represents an increase of 50.28%. The most common reasons for
discrimination were religion and beliefs (48%), followed closely by ethnicity / skin color (45%). In
addition, there were 12 disability discrimination cases (5%). Four cases were due to sexism (2%).
7
Austria, Amendment to the School-Education-Act (Bundesgesetz, mit dem das Schulunterrichtsgesetz geändert
wird), 25 June 2019.
8
Schönherr, D., Leibetseder, B., Moser, W. and Hofinger, Ch. (2019), Diskriminierungserfahrungen in
Östereich: Erleben von Ungleichbehandlung, Benachteiligung und Herabwürdigung in den Bereichen Arbeit,
Wohnen, medizinische Dienstleistungen und Ausbildung, Vienna, Institute for Social Research and Consulting.
9
Schönherr, D., Leibetseder, B., Moser, W. and Hofinger, Ch. (2019), Diskriminierungserfahrungen in
Östereich: Erleben von Ungleichbehandlung, Benachteiligung und Herabwürdigung in den Bereichen Arbeit,
Wohnen, medizinische Dienstleistungen und Ausbildung, Vienna, Institute for Social Research and Consulting.
10
Schönherr, D., Leibetseder, B., Moser, W. and Hofinger, Ch. (2019), Diskriminierungserfahrungen in
Östereich: Erleben von Ungleichbehandlung, Benachteiligung und Herabwürdigung in den Bereichen Arbeit,
Wohnen, medizinische Dienstleistungen und Ausbildung, Vienna, Institute for Social Research and Consulting.
11
Initiative für ein diskriminierungsfreies Bildungssystem, Diskriminierung im österreichischen Bildungswesen
- Bericht 2018, 2019.
5
Franet National contribution to the FRA Fundamental Rights Report 2020In July 2019, the Committee on the Elimination of Discrimination against Women published its
Concluding Observations on the Ninth Periodic Report of Austria.12 With respect to women with
disabilities, the report outlines four major findings: that inclusive education needs to be developed at
all levels to give girls and women with disabilities equal opportunities on the labour market;
counseling services and victim protection services for women who have experienced violence must be
made accessible in Austria; women with disabilities are often overlooked and must be included in all
disability policy programs as well as in women's policies; Austria must develop and implement
measures to eliminate intersectional discrimination that women and girls face due to their gender and
disabilities.13
12
Committee on the Elimination of Discrimination against Women (2019), Concluding Observations on the
Ninth Periodic Report of Austria, CEDAW/C/AUT/CO/9, 22 July 2019.
13
Committee on the Elimination of Discrimination against Women (2019), Concluding Observations on the
Ninth Periodic Report of Austria, CEDAW/C/AUT/CO/9, 22 July 2019.
6
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 2. Racism, xenophobia and related intolerance
1. Legal, policy developments and measures relating to the application of the Racial Equality
Directive
No relevant legal amendments since 2017.
Social protection has been restricted for foreigners by the amendment of the Social-Support-Act
(Sozialhilfegesetz). The Basic Act on Social Support (Sozialhilfe-Grundsatzgesetz)14 will come into
force on 1 January 2020. The right to access to social support for EU citizens requires a minimum
legal residence of five years as an employee. Refugees have access to social protection as soon they
are granted asylum protection status. Subsidiary protection status holders are only entitled to so-called
“core services”, which are limited to the services in basic care. However, even before the Basic Act
on Social Support entered into force, the Constitutional Court ruled some provisions of the Basic Act
on Social Support as unconstitutional on 12 December 2019.15 In particular, the Basic Act on Social
Support stipulates that the maximum rate of social assistance for the first child is 25%, 15% for the
second child, and 5% for the third and each additional child. The Constitutional Court found that these
different maximum rates for children are objectively unjustified and are therefore unconstitutional.
According to the Constitutional Court, this regulation can lead to situations in which the necessary
livelihood in multi-child families is no longer guaranteed. Moreover, the Court ruled unconstitutional
a provision in the law, according to which a share of at least 35% of social assistance is dependent on
the ability of the beneficiary to be placed on the Austrian labor market. According to the law, this
ability was given if at least language level B1 (German) or C1 (English) could be proven by the
beneficiary. If this requirement was not met, social assistance benefits had to be reduced accordingly
and benefits in kind (language courses) were to be granted instead. This regulation was also found to
be unconstitutional by the Constitutional Court on 12 December 2019.16
2. Legal, policy developments and measures relating to the application of the Framework
Decision on Racism and Xenophobia
No relevant legal amendments since 2015. The action plan on the prevention of extremism, initiated
by the Federal Office for the Protection of the Constitution and Combating Terrorism (Bundesamt für
Verfassungsschutz und Terrorismusbekämpfung (BVT), is partly relevant. In 2017, the network for the
prevention of extremism and de-radicalisation (Bundesweite Netzwerk Extremismusprävention und
Deradikalisierung (BNED)) was set up, which strategically deals with the topic taking a holistic
approach towards all forms of extremism, including right-wing extremism. Its tasks are knowledge
transfer and the bundeling of preventive measures. The BNED elaborated the strategy on the
prevention of extremism.17
The BVT observes a slight increase of right-wing extremist activities with a strong impact on the
public climate towards vulnerable groups: “Possible targets of right-wing extremist agitation are,
among other things, Jews and Muslims and their institutions, migrants and asylum seekers as well as
individuals who are stereotypically perceived as ‘foreign’. In addition to this, the climate of opinion,
14
Austria, Basic Act on Social Support (Bundesgesetz betreffend Grundsätze für die Sozialhilfe (Sozialhilfe-
Grundsatzgesetz),BGBl. I Nr. 41/2019.
15
Austria, Constitutional Court, G 164/2019-25, G 171/2019-24, 12 December 2019.
16
Austria, Constitutional Court, Press information G 164, 171/2019, 17 December 2019.
17
Austria Federal Ministry for the Interior, Federal Office for the Protection of the Constitution and Combating
Terrorism (2019), Report on the Protection of the Constitution 2018 (Verfassungssschutzbericht 2018), p. 56.
7
Franet National contribution to the FRA Fundamental Rights Report 2020which is influenced by xenophobia and hostility towards asylum seekers, as well as right-wing
extremist activities, pose a threat to democracy.”
Furthermore, the BVT states: “In 2018, the Austrian security authorities registered a total of 1,075
right-wing extremist, xenophobic/racist, Islamophobic, anti-Semitic, and unspecific or other criminal
acts, in the course of which relevant offences were reported to the authorities. One criminal act may
comprise several offences separately reported to the authorities. Compared to 2017 (1,063 offences),
the number increased by 1.1 percent. 677 criminal acts, that is 63 percent, were successfully solved. In
2017, the rate of successfully solved cases amounted to 58.1 percent. In connection with the criminal
offences mentioned, 1,622 offences were reported in Austria in 2018, which is 2.9 percent more than
in 2017 (1,576 offences).”18
The BVT further reasons – with relevance to the Framework Decision: “Right-wing extremists define
‘racial homogeneity’ as the highest value which excludes all individuals who are perceived as
‘foreign’ (we and the others). An essential feature of secondary anti-Semitism is the ‘reversal of
perpetrator and victim’. Parts of the right-wing extremist spectrum have a revisionist view of history
regarding the genocide of European Jews during the Second World War.”19
There are no specific data available on hate crime and hate speech against youth, as statistics
disaggregate by crime and perpetrator, but not by victims. However, the Federal Criminal Office
(Bundeskriminalamt) states figures on crime on the internet in its Police Crime Report 2018
(Polizeiliche Kriminalstatistik 2018).20 “Crime moves to the internet”, the relevant section is titled.
Reported cases of internet crimes increased by 16.8% to 19,627 cases in total from 2017 to 2018.
7,980 suspects were reported. 70.1 % were male. 3,547 suspects were between 25 and 39 years old
and 1,896 over 40. Reported cases of child pornography increased to about 58.4% totalling 1,160
cases.21
The project “Expanded, systematic hate crime data collection and reporting of the Austrian Police”
was started at the Ministry of the Interior (Department III/10 – Fundamental and Human Rights and
Department II/1 - Organisation, service affairs, analysis) in July 2019 and will run for 24 months. The
project (EU Grant Agreement Nr. 847659 HC-POL-DATA) aims to improve the recording of
discriminatory motives in criminal charges on a scientific basis. In Austria, hate crime is currently
recorded exclusively within the framework of politically motivated crime - especially with regard to
right-wing extremism. Against this background, the project is intended to support the organs of the
public security service in better implementing the international obligations. This is to be achieved by
technical solutions for data recording, by training police members, and by fostering dialogue with
civil society institutions. The Institute for the Sociology of Law and Criminology (IRKS) at the
University of Vienna accompanies this process as a scientific partner, among other things through
international comparative studies on data collection, systematic observations of the implementation
process, and a comparison of the collected figures to other data sources (also on the dark figure).22
18
Austria Federal Ministry for the Interior, Federal Office for the Protection of the Constitution and Combating
Terrorism (2019), Report on the Protection of the Constitution 2018 (Verfassungssschutzbericht 2018), p. 79.
19
Austria Federal Ministry for the Interior, Federal Office for the Protection of the Constitution and Combating
Terrorism (2019), Report on the Protection of the Constitution 2018 (Verfassungssschutzbericht 2018), p. 80.
20
Austria, Federal Criminal Office (2019), Police Crime Report 2018 (Polizeiliche Kriminalstatistik 2018 –
Österreich ist so sicher wie noch nie).
21
Austria, Federal Criminal Office (2019), Police Crime Report 2018 (Polizeiliche Kriminalstatistik 2018 –
Österreich ist so sicher wie noch nie).
22
Austria, Federal Ministry for the Interior, ‘Expanded, systematic hate crime data collection and reporting of
the Austrian Police’.
8
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 3. Roma integration
1. Measures and developments addressing Roma/Travellers segregation
There are no measures or developments addressing Roma/Travellers segregation in 2019 to be
reported.
2. Policy and legal measures and developments directly or indirectly addressing
Roma/Travellers inclusion
New ESF Roma Empowerment projects co-funded by the Federal Ministry of Labour, Social Affairs,
Health and Consumer Protection were presented at the 23rd Roma Dialogue Platform of the National
Roma Contact Point in the Federal Chancellery:23
- TRAJO - Training, Education, Job and Orientation (Caritas Vienna): TRAJO consists of
educational and career counselling, and counseling on social issues; German courses with
focus on work; job coaching; anti-discrimination and empowerment; and the establishment of
contacts with companies.
- romblog.at - ROMBLOG DIGITAL EVOLUTION: "Romblog.at" is an internet platform
founded in May 2017. Since May 2019, this platform has been part of the project "Romblog
Digital Evolution", which aims to improve the chances of young people from the Roma and
Sinti community in the labour market through media workshops conducted in cooperation
with the public broadcasting agency (ORF). The participants of the project complete
workshops in order to take first steps in the media landscape. The project is financially
supported by the European Social Fund and the Federal Ministry of Labor, Social Affairs,
Health and Consumer Protection.24
- ROMA ABC (Itworks)25 runs from 1 May 2019 to 31 October 2022 and aims to achieve
inclusion by promoting equal opportunities in the labour market for 300 Roma and Sinti aged
15-65. The project provides short counselling, empowerment, case management, digital basic
education offers, career orientation, active placement support, preparation for the
apprenticeship, support in case of social problems, application support, follow-up support in
the apprenticeship relationship, job forums, and training advice. The project cooperates with
the Cultural Association of Austrian Roma and uses the existing networks of Itworks.
- DROM - Empowerment for Roma (Viennese adult education centres): DROM is concerened
with orientation advice; educational and vocational guidance; perspective planning;
accompaniment and assistance with social problems; support for labour market obstacles;
creating application documents on the computer; strengthening existing skills and knowledge;
and organising information and awareness events.
23
Austria, Federal Chancellery, 23. Dialogplattform, 17 September 2019.
24
Romblog.at, romblog.at, September 2019.
25
itworks Personalservice und Beratung gGmbH, Roma Ausbildungs- & Berufsberatungs-Centrum,
Presentation at the 23rd Roma Dialogue Platform of the National Roma Contact Point in the Federal
Chancellery, 17 September 2019.
9
Franet National contribution to the FRA Fundamental Rights Report 2020- AMARI BUKI (Volkshilfe Upper Austria) started in May 2019 and will run for 3.5 years.
The project is concerned with individual counsellings, public events,
skills training, and has a particular focus on youth and women.
- THARA ROMANO SVATO (Volkshilfe Austria), has the following objectives: Increase job
opportunities and integration into the labour market; activation and stabilisation through
social counselling and intensive care; poverty reduction through advice and information;
empowering the target group to act independently in the medium and long term; increase
awareness of the majority society for discrimination against Roma and Romnja. The means to
achieve these objectives are the provision of counselling, qualification, and information.
- KAMBUKE – WORKS (CARITAS Diocese of Seckau), runs from 1 May 2019 to 31
October 2022 and consists of the following measures:
1. Qualification and employment: Sustainable integration of the target group into the job
market through work and educational counselling, job application training, qualification
measures;
2. Empowerment: Encouraging and accompanying a self-empowerment process in both
personal individual and ethnic / collective terms; Support of the self-empowerment or
institutionalisation process with the help of specially created teaching materials;
3. Network and public relations: Provision of basic information (socioeconomic and
sociocultural situation, basic information on history, especially contemporary history),
reduction of prejudices and stereotypes towards the target group; building a broad
network of supporters; creation of a sustainable dimension by creating a booklet on
“Roma in Graz”.
- COMPETENCE / RETAIL SECTOR (BFI vocational training institute Vienna) runs from
2019-2022 and has the following objectives: empowerment through personal care and role
models; expansion of expertise in the retail sector up to the extraordinary apprenticeship
exam; increase employability and reduce obstacles to integration.
The 24th Roma Dialogue Platform of the National Roma Contact Point in the Federal Chancellery
was held on 19 November 2019. On the occasion of the 30th anniversary of the UN Convention on
the Rights of the Child, the dialogue platform was dedicated to the topic of empowering Roma
children and adolescents. Projects concerning Roma school mediation were discussed from different
perspectives.26
There were no further specific measures addressing Roma inclusion in 2019. According to the Ethnic
Groups Act (Volksgruppengesetz), the federal government has to promote measures and projects
aimed at preserving and safeguarding the existence of ethnic groups, their people, and their
characteristics and rights, as well as promote intercultural projects that serve the coexistence of ethnic
groups. This financial support is usually spent on structural support and project support. The report on
how the amount was spent in 2019 is not available yet. In 2018, a total of 385,934.00€ was provided
to Roma organisations.27 No funding cuts were foreseen for the year 2019.28 Here is an exemplarily
list of measures implemented in 2019:
26
Austria, Federal Chancellery, 24. Dialogplattform, 19 November 2019.
27
Austria, Federal Chancellery (2019), Reply to an parliamentyra inquiry (BKA-353.120/0029-IV/10/2019), 26
April 2019.
28
Austria, Federal Chancellery (2019), Reply to an parliamentyra inquiry (BKA-353.120/0029-IV/10/2019), 26
April 2019.
10
Franet National contribution to the FRA Fundamental Rights Report 2020Romano Centro, which was founded in 1991 as one of the first Roma associations in Austria, works to
improve the living conditions of Roma and to fight their discrimination. The focus of activity is
education and culture. ROMANO ZURALIPE is the program run by Romano Centro to empower
Roma and Romnja in the labour market. The programme comprises the following measures:29
- Vocational and educational counselling, and counselling on the removal of labor market obstacles.
Provision of individual and holistic advice to poor persons or persons at risk of poverty (including the
Working Poor) for (better) integration into the labour market and to remove obstacles in the access to
the labour market.
- Vocational orientation and measures to increase the chances on the job market for disadvantaged
young people by Roma school mediators involving their families.
- Empowerment for young people: Training Roma youths or adults to become youth leaders
(multipliers) with additional practical guidance (developing and implementing a project with Roma
adolescents).
- Train-the-trainer activities: Training of young Roma in the field of training (antiziganism, history,
and culture) and as multipliers in the dissemination of information on different topics.
Since 1995, Romano Centro also offers learning aid for Roma schoolchildren in Vienna. The primary
target group of the learning aid is Roma pupils who attend compulsory education. The learning aid
takes place individually in the homes of the children, so that their learning needs can be dealt with
precisely.
Since September 2013, Romano Centro also offers women's counselling for Romnja and Sintize. The
topics of counselling range from family, partnership and sexuality, mental and physical health, social
and economic crises, to violence prevention.
Romano Centro also runs Roma school mediators at Viennese schools:30 The Roma school mediators
mediate between teachers, pupils, and parents. They motivate and accompany the children in the
classroom, help the teachers with difficulties in understanding, and try facilitate the access of the
parents to school. Due to their native-language knowledge, the school mediators promote the
identification of the children and are available to the parents as persons they trust and with an
understanding of the cultural and traditional background. Tasks of the Roma school mediators:
- Provide support for the relationship between school and home, as well as communication between
teachers and Roma parents;
- Information, advice, and support for parents in school and educational matters;
- Contact person (in several languages) for Roma pupils and parents, and for teachers in case of
problems of Roma pupils;
- Supervision of teacher training courses to ensure the participation of Roma students;
- Support of Roma students in class and during class, especially through communication in their
mother tongue;
- Provision of additional learning opportunities or funding opportunities for Roma children;
- Providing knowledge about Roma culture and history for pupils and teachers.
The Association KARIKA - for Roma and Sinti (Verein KARIKA – für Roma und Sinti)31
implemented the project "Butschakero Them - Arbeitswelt" for unemployed Roma and Sinti from
February 2017 to January 2019. The project aimed to provide assistance and support for the job
search, contacts with public authorities, and aimed to provide support to migrants of the Roma
minority.
29
Romano Centro, ROMANO ZURALIPE, September 2019.
30
Romano Centro, Roma-SchulmediatorInnen an Wiener Schulen, September 2019.
31
Karika, Butschakero Them- Arbeitswelt, September 2019.
11
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 4. Asylum, visas, migration, borders and integration
Unaccompanied children reaching the age of majority
Area of support Description
Please explain whether unaccompanied children (non-asylum seekers and asylum seekers) get temporary permits
Residence permit
and if they expire when turning 18. Please elaborate on which type of permit is granted when they reach 18 years
Reception conditions Directive and under which conditions (e.g. being enrolled in education, or having an employment contract.)
(article 6 and 7) and Qualification In Austria, unaccompanied children (non-asylum seekers and asylum seekers) do not get temporary residence
Directive (articles 24 and 31) permits. They may get a residence permit due to their asylum status (§ 3 Asylum Act 2005, Asylgesetz 2005, AsylG
2005)32, their subsidiary protection status (§ 8 AsylG 2005), a humanitarian residence permit for reasons of Article 8
ECHR (§ 55 (1) AsylG 2005), a residence permit for extenuating circumstances (§ 56 AsylG 2005), a residence
permit special protection (§ 57 AsylG 2005), or a "Red-White-Red- Card plus" (Rot-Weiß-Rot – Karte plus“)
according to § 41a (10) Residence and Settlement Act (Niederlassungs- und Aufenthaltsgesetz, NAG)33. These
residence permits are generally not tied to the person's age. So, if an unaccompanied child turns 18, this has no effect
on the residence title. However, a certain exception to this rule is the residence permit "Red-White-Red-Card plus"
according to § 41a (10) NAG. This residence permit is generally granted for one year and its renewal cannot be
applied for after the child has turned 18. So, if the child wants to continue to stay in Austria, he/she has to apply for
another residence permit (e.g., residence permit for students according to the NAG).
Please elaborate on how the role of guardians is affected when the child reaches 18, and of any initiatives to expand
Guardianship (representative
32
Austria, Asylum Act 2005 (Bundesgesetz über die Gewährung von Asyl, Asylgesetz 2005 - AsylG 2005), BGBl. I Nr. 100/2005.
33
Austria, Residence and Settlement Act (Bundesgesetz über die Niederlassung und den Aufenthalt in Österreich, Niederlassungs- und Aufenthaltsgesetz – NAG), BGBl. I
Nr. 100/2005.
Franet National contribution to the FRA Fundamental Rights Report 2020under Reception Conditions the guardian’s support, for example transforming the guardian into a ‘mentor’ supporting the child until a certain
Directive Article 24.1) age.
According to §158 Civil Code (ABGB)34 the guardianship ends automatically as the child turns 18. The young
person then has full legal capacity (geschäftsfähig) and is responsible for his/her own education, welfare, education,
and legal representation (§§ 160 et seqq., §§ 164 et seqq. as well as §§ 167 et seqq. Civil Code). In case of a mental
impairment, the young person may still be represented by an adult after the age of 18 (§ 268 (1) Civil Code).
However, guardians may prepare unaccompanied children for independent life during the guardianship: The Basic
Care Agreement between the Federal State and the Provinces (Grundversorgungsvereinbarung - Art. 15a B-VG)35
enumerates the care activities to be provided for unaccompanied children in Art. 7 (3). This list includes activities
that can be interpreted as preperation activities for the time after the guardianship ends.
Please explain what children reaching 18 years are entitled to in terms of accommodation, for example extension of
Accommodation
foster care programmes until the age of 21, only transfer to an adult accommodation, or other accommodation
Reception Conditions Directive support.
Article 24.2 Unaccompanied children in basic care, who turn 18, are no longer qualified for the special reception conditions
provided for under Article 7 of the Basic Care Agreement between the Federal State and the Provinces
(Grundversorgungsvereinbarung - Art. 15a B-VG).36 This implies that they have to move to a care facility for adults
or their own home.37 There are no nationwide after-care arrangements in place.
Unaccompanied children with asylum status, who receive support from the child and youth welfare service, may
continue to receive support in the context of child and youth welfare until the age of 21 at the latest. This support for
34
Austria, Civil Code (Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie), JGS Nr. 946/1811.
35
Austria, Basic Care Agreement between the Federal State and the Provinces (Vereinbarung zwischen dem Bund und den Ländern gemäß Art. 15a B-VG über gemeinsame
Maßnahmen zur vorübergehenden Grundversorgung für hilfs- und schutzbedürftige Fremde (Asylwerber, Asylberechtigte, Vertriebene und andere aus rechtlichen oder
faktischen Gründen nicht abschiebbare Menschen) in Österreich (Grundversorgungsvereinbarung - Art. 15a B-VG), BGBl. I Nr. 80/2004.
36
Austria, Basic Care Agreement between the Federal State and the Provinces (Vereinbarung zwischen dem Bund und den Ländern gemäß Art. 15a B-VG über gemeinsame
Maßnahmen zur vorübergehenden Grundversorgung für hilfs- und schutzbedürftige Fremde (Asylwerber, Asylberechtigte, Vertriebene und andere aus rechtlichen oder
faktischen Gründen nicht abschiebbare Menschen) in Österreich (Grundversorgungsvereinbarung - Art. 15a B-VG), BGBl. I Nr. 80/2004.
37
Bassermann, M., Spiegelfeld A., Unbegleitete Minderjährige nach Feststellung des Aufenthaltsstatus in Österreich, Nationaler Kontaktpunkt Österreich im Europäischen
Migrationsnetzwerk, Vienna 2018, p. 36.
13
Franet National contribution to the FRA Fundamental Rights Report 2020young adults may be granted in hard cases according to § 29 Federal Child and Youth Welfare Act 2013 (Bundes-
Kinder- und Jugendhilfegesetz 2013).38 The ‘hard cases’ are not explicitly enumerated in the law and are rather
evaluated on an individual basis. The explanatory remarks39 to this paragraph explain that the late adolescence and
early adulthood are characterised by an increasing independence of the young people from their parents. Educational
tasks of parents are becoming increasingly obsolete then, while adolescents and young adults are increasingly
assuming more responsibility for their own lives and ultimately leaving their parents' household and even paying for
their own maintenance. However, the expanatory remarks further explain that this process can be delayed by
“different crises and traumas in childhood and adolescence”, which is why a follow-up beyond the age of 18 years is
necessary in order to safeguard the successes achieved until then. In order to expand child and youth welfare until
the age of 21, educational assistance must have been provided at the time when the young person turns 18, and there
must also be an urgent necessity to reach the goals defined in the aid plan. There is no legal entitlement to young
adults until 21. The goal of helping young adults is first and foremost to support the process of self-employment,
which includes the completion of vocational training. Primarily, the duration of these aids is geared to the individual
needs of young people, but it is limited to the end of the 21st year.40
Please explain whether there are any special measures to prepare unaccompanied children for a return procedure
Return
and whether young adults receive any form of free assistance during eventual return procedures
Return Directive, Article 10 The best interest of the child has to be a primary consideration for the return decision concerning unaccompanied
children (§1 Federal Constitutional Law on the Rights of Children).41 The authority must ensure that the child
concerned can be handed over to a member of the family, an official guardian, or a suitable host institution in the
country of destination (§ 46 (3) Alien Police Act 2005 - Fremdenpolizeigesetz 2005, FPG).42 If the asylum seeker is
38
Austria, Federal Child and Youth Welfare Act 2013 (Bundesgesetz über die Grundsätze für Hilfen für Familien und Erziehungshilfen für Kinder und Jugendliche (Bundes-
Kinder- und Jugendhilfegesetz 2013 – B-KJHG 2013), BGBl. I Nr. 69/2013.
39
Austria, Explanatory Remarks to the Federal Child and Youth Welfare Act 2013 (Erläuterungen zum Bundesgesetz über die Grundsätze für Hilfen für Familien und
Erziehungshilfen für Kinder und Jugendliche (Bundes-Kinder- und Jugendhilfegesetz 2013 – B-KJHG 2013), 2013.
40
Austria, Explanatory Remarks to the Federal Child and Youth Welfare Act 2013 (Erläuterungen zum Bundesgesetz über die Grundsätze für Hilfen für Familien und
Erziehungshilfen für Kinder und Jugendliche (Bundes-Kinder- und Jugendhilfegesetz 2013 – B-KJHG 2013), 2013.
41
Austria, Federal Constitutional Law on the Rights of Children (Bundesverfassungsgesetz über die Rechte von Kindern), BGBl. I Nr. 4/2011
42
Austria, Alien Police Act 2005 (Bundesgesetz über die Ausübung der Fremdenpolizei, die Ausstellung von Dokumenten für Fremde und die Erteilung von Einreisetitel,
Fremdenpolizeigesetz 2005 – FPG), BGBl. I Nr. 100/2005.
14
Franet National contribution to the FRA Fundamental Rights Report 2020an unaccompanied child above the age of 14, the authorities must carry out a search for family members in the
country of origin, in a third country or in a Member State. If the asylum seeker is an unaccompanied child below the
age of 14, the authority has to assist him/her in the search for relatives upon request (§ 18 (2) Asylum Act 2005
(Asylgesetz 2005, AsylG 2005).43
Unaccompanied children may receive support for a voluntary return according to § 52a Federal Act on the General
Rules for Procedures at the Federal Office for Immigration and Asylum (BFA-Verfahrensgesetz, BFA-VG).44 Return
counselling is offered by Caritas and the association "Verein Menschenrechte Österreich" on behalf of the Federal
Ministry of the Interior.45 The costs for the voluntary return are covered by the return support in any case (§52a
BFA-VG). Moreover, return support may also comprise the organisation of travel documents or medical support
during the return.46
Unaccompanied children turning 18, who have been issued a final negative decision, must fulfill their return
obligation. The favourable provisions on detention pending removal concerning lenient measures (§§ 77 (1) FPG),
the modalities of detention (§79 (3) and (5) FPG), as well as duration of detention (§ 80 (2) 1 FPG) then do not apply
anymore. Theoretically, also a forced return of unaccompanied children is possible under the conditions laid down in
§ 46 (3) Alien Police Act 2005 (Fremdenpolizeigesetz 2005, FPG).47
e.g. special permissions to stay based on education or employment programme, etc.
Other
None.
43
Austria, Asylum Act 2005 (Bundesgesetz über die Gewährung von Asyl, Asylgesetz 2005 - AsylG 2005), BGBl. I Nr. 100/2005.
44
Austria, Federal Act on the General Rules for Procedures at the Federal Office for Immigration and Asylum (Bundesgesetz, mit dem die allgemeinen Bestimmungen über
das Verfahren vor dem Bundesamt für Fremdenwesen und Asyl zur Gewährung von internationalem Schutz, Erteilung von Aufenthaltstiteln aus berücksichtigungswürdigen
Gründen, Abschiebung, Duldung und zur Erlassung von aufenthaltsbeendenden Maßnahmen sowie zur Ausstellung von österreichischen Dokumenten für Fremde geregelt
werden, BFA-Verfahrensgesetz – BFA-VG), BGBl. I Nr. 87/2012.
45
Austria, Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA), Freiwillige Ausreise und Rückkehrhilfe, without date.
46
Austria, Federal Act on the General Rules for Procedures at the Federal Office for Immigration and Asylum (Bundesgesetz, mit dem die allgemeinen Bestimmungen über
das Verfahren vor dem Bundesamt für Fremdenwesen und Asyl zur Gewährung von internationalem Schutz, Erteilung von Aufenthaltstiteln aus berücksichtigungswürdigen
Gründen, Abschiebung, Duldung und zur Erlassung von aufenthaltsbeendenden Maßnahmen sowie zur Ausstellung von österreichischen Dokumenten für Fremde geregelt
werden, BFA-Verfahrensgesetz – BFA-VG), BGBl. I Nr. 87/2012.
47
Austria, Alien Police Act 2005 (Bundesgesetz über die Ausübung der Fremdenpolizei, die Ausstellung von Dokumenten für Fremde und die Erteilung von Einreisetitel,
Fremdenpolizeigesetz 2005 – FPG), BGBl. I Nr. 100/2005.
15
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 5. Information society, data protection
1. Activities developed and launched by national data protection supervisory authorities (SAs) to implement and enforce the GDPR
The Austrian Data Protection Authority implemented and enforced the GDPR by way of 19 final decisions in 2019 (as of 12 September 2019). Apart from
that, the DPA published relevant information on the GDPR on its website.48 In addition, the DPA publishes a newsletter four times a year and staff members
of the DPA regularly give lectures during events on the GDPR.49 Already in 2018, the number of procedures rose significantly. This trend continued in 2019
according to the DPA.50 An evaluation carried out in July 2019 showed that on average, each civil servant deals with 115 pending cases. Although the number
of procedures increases, only a moderate increase in the DPA workforce is to be reported for 2019 (four additional legal staff). In addition, four administrative
interns currently work for the DPA.51
The supervision over data processing in the judicial area in the sense of the GDPR is exercised by the competent courts according to § 85 et seq. Court
Organisation Act (Gerichtsorganisationsgesetz, GOG).52 The Federal Ministry of Constitutional Affairs, Reforms, Deregulation and Justice reported that it did
not regard any further legal steps necessary to implement and enforce the GDPR.53
48
Austria, Data Protection Authority (2019), Data Protection in Austria (Datenschutzrecht in Österreich: Die DSGVO, das DSG, der LEITFADEN und weitere wichtige
Gesetze zum in Österreich geltenden Datenschutzrecht), 2019.
49
Information provided by the Data Protection Authority by email on 12 September 2019.
50
Information provided by the Data Protection Authority by email on 12 September 2019.
51
Information provided by the Data Protection Authority by email on 12 September 2019.
52
Austria, Court Organisation Act (Gesetz vom 27. November 1896, womit Vorschriften über die Besetzung, innere Einrichtung und Geschäftsordnung der Gerichte erlassen
werden, Gerichtsorganisationsgesetz – GOG), RGBl. Nr. 217/1896.
53
Information provided by the Federal Ministry of Constitutional Affairs, Reforms, Deregulation and Justice by email on 20 September 2019.
16
Franet National contribution to the FRA Fundamental Rights Report 20202. Artificial intelligence and big data
Are Reference
Are
Human
Ethical
Rights
Actor Type* concerns
MS Description issues
* * mentione
mention
d?
ed?(yes/
(yes/no)
no)
Other: Repor This study by Accenture - Yes No
consul t/stud commissioned by the Federal (only Austria, Accenture (commissioned by the Federal
tant y Ministry Digital and Economic one Ministry Digital and Economic Affairs), Mission with
Affairs sheds light on future fields of minor vision (MISSION MIT VISION Wie Österreich seine
AI from a practical, societal, and referenc Zukunft mit künstlicher Intelligenz gestaltet), 2019.
economic perspective: What vision e)
should Austrian society pursue?
What progress has Austria already
AT made? What action is needed to
keep Austria competitive in the age
of AI?
The aim of the study is to provide
the working groups tasked with
developing the Austrian AI strategy
with a forum for discussion and with
specific policy recommendations.
Gover Other: The authors of this motion for No No
nment motio resolution call upon the Federal Austria, Motion for a resolution (Entschließungsantrag
AT / n for a Government, in particular the der Abgeordneten Stephanie Cox, Kolleginnen und
Parlia resolu Federal Minister for Transport, Kollegen betreffend Fit 4 AI - Aufklärungsfokus bei der
menta tion Innovation and Technology, to focus Entwicklung und Umsetzung der österreichischen
17
Franet National contribution to the FRA Fundamental Rights Report 2020ry on public awareness work in the Strategie für Künstliche Intelligenz „AlM AT 2030“),
context of work on the Austrian AI 825/A(E) XXVI. GP, 16 May 2019.
strategy "AlM AT 2030". Moreover,
the motion demands to publicly
document and communicate the
(intermediate) results and findings in
the context of the implementation of
the AlM AT 2030 strategy in the
form of a "KI Monitor Austria" in
such a way that every Austrian
citizen has the opportunity to be
informed about current
developments.
Gover Repor The Austrian Research and yes yes Austria, Austrian Research and Technology Report 2019
nment t/stud Technology Report 2019 presents (Österreichischer Forschungs- und Technologiebericht
/ y federally funded research, 2019), 2019.
Parlia technology, and innovation in
menta Austria. Three cornerstones are
ry considered relevant for an Austrian
robotics and AI strategy: in the
report: 1. Smart Governance: A
broad involvement of all
stakeholders, and especially of
AT
citizens in the strategy process, is
considered necessary to increase the
acceptance of new technologies. 2.
Smart Innovation: It requires a
sound research, development, and
investment policy to exploit the
potential of robotics and AI
technologies in all their applications,
opening up new markets and
applications. 3. Smart Regulation:
18
Franet National contribution to the FRA Fundamental Rights Report 2020Stable and secure framework
conditions are the prerequisite for
the trust of economic actors and the
positive development of markets.
The use of robotics and AI must
therefore ensure the safety of people
and must comply with ethical
standards, fundamental rights, and
the European set of values.
Gover Repor The Traffic Telematics Report 2019 No. Yes, Austria, Ministry for Transport, Innovation and
nment t/stud focuses on future developments in data Technology, Traffic Telematics Report 2019
/ y the field of intelligent transport protecti (Verkehrstelematikbericht 2019).
Parlia systems under the motto "digital: on.
menta networked: mobile". According to
ry the report, research and development
AT activities funded focus on the
establishment of an optimised
overall system for nationwide and
reliable recording of traffic and the
use of artificial intelligence to
support the automated assessment of
tolls set.
*For the actors, please pick from the following suggestions:
- Government/ Parliamentary
- DPA
- NGO/Other Non Profit
- Academia
- Domestic Courts
- Business
- Independent State Institution
19
Franet National contribution to the FRA Fundamental Rights Report 2020- Other
** for the type, please pick from the following suggestions:
- National Draft Acts / Adopted Acts
- report/study
- other projects
3. Data retention
We already reported in the previous fundamental rights report that Austria adopted an amendment to the Criminal Procedure Code
(Strafprozessrechtsänderungsgesetz 2018) in 2018.54 These amendments, among others, introduced the possibility for a “Quick Freeze” in §135 (2b) Criminal
Procedure Code. According to this provision, data retention warranted by specific occasions (Anlassdatenspeicherung) is permissible under certain conditions,
if the prosecution deems this to be necessary on the basis of an initial suspicion. This amendment has been criticised as being a revised version of data
retention.55
54
Austria, Amendment to the Criminal Procedure Code 2018 (Strafprozessrechtsänderungsgesetz 2018).
55
See, for instance, epicenter.works, Opinion on the amendment to the Criminal Procedure Code (Stellungnahme zum Ministerialentwurf betreffend eines Bundesgesetzes, mit
dem die Strafprozessordnung 1975, das Staatsanwaltschaftsgesetz und das Telekommunikationsgesetz 2003 geändert werden, Strafprozessrechtsänderungsgesetz 2018 – 17
d.B. XXVI. GP), 21 March 2018.
20
Franet National contribution to the FRA Fundamental Rights Report 2020Chapter 6. Rights of the child
1. Procedural safeguards for children who are suspects in criminal proceedings
Legislative
No legislative changes entered into force.
changes
A draft law amending the Criminal Procedure Code and the Youth
Criminal Act 2019 is currently in Parliament.56 The purpose of this
draft is to fully implement the Directive on procedural safeguards for
children who are suspects or accused persons in criminal proceedings
(EU) 2016/800 (improvement for juvenile court assistance,
amendments to provisions on necessary defence) and to fully
implement the Legal Aid Directive (EU) 2016/1919 (providing free
access to a defense counsel even before the possibility of obtaining
legal aid). It also aims to introduce a coherent terminology of civil
law and related criminal law.
With respect to children, the purpose of the present draft is to
implement those provisions of the Directive 2016/800, which are not
yet (sufficiently) implemented by the existing legal provisions of the
Juvenile Court Act 1988 (Jugendgerichtsgesetz 1988)57.
Main amendments to the Juvenile Court Act 1988 (proposed):
- §1 (2) JGG introduces amendments concerning definitions:
Where it is uncertain whether a person has reached the age of
18, that person shall be presumed to be a child (Art 3 of the
Directive)
- §§ 30, 54 and 63 (2) JGG introduce amendments concerning
the training of staff of law enforcement authorities and of
detention facilities (Art 20 of the Directive)
- § 31a JGG introduces amendments concerning the timely
treatment of cases (Art 13 (1) of the Directive)
- § 32 JGG introduces amendments concerning the timely
assistance by a lawyer (Art 6 of the Directive)
- § 32a JGG introduces amendments to ensure that the right to
information is fully guaranteed (Art 4 of the Directive)
56
Austria, Draft law amending the Criminal Procedure Code and the Youth Criminal Act 2019
(Strafprozess- und Jugendstrafrechtsänderungsgesetz 2019).
57
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei
Straftaten Jugendlicher und junger Erwachsener, Jugendgerichtsgesetz 1988 – JGG), BGBl. Nr.
599/1988.
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